Vol. 13 · pages 1056–1060

1023DRAFT CONSTITUTION period and 15 months too long. It was represented to us that the cases of detenus may be considerable. We do not know how the situation in this country will develop, what would be the circumstances which would face the country when the Constitution comes into operation, whether the people and parties in this country would behave in a constitutional manner in the matter of getting hold of power, or whether they would resort to unconstitutional methods for carrying out their purposes. If all of us follow purely constitutional methods to achieve our objective, I think the situation would have been different and probably the necessity of having preventive detention might not be there at all. But I think in making a law we ought to take into consideration the worst and not the best. Therefore if we follow upon that position, namely, that there may be many parties and people who may not be patient enough, if I may say so, to follow constitutional methods but are impatient in reaching their objective and for that purpose resort to unconstitutional methods, then there may be a large number of people who may have to be detained by the executive. Supposing there is a large number of people to be detained because of their illegal or unlawful activities and we want to give effect to the provisions contained in sub-clause (a) of that proviso, what would be the situation ? Would it be possible for the executive to prepare the cases, say against one hundred people who may have been detained in custody, prepare the brief, collect all the information and submit the cases to the Advisory Board ? Is that a practical possibility ? Is it a practical possibility for the Advisory Board to dispose of so many cases within three months, because I will say that the provisions contained in sub-clause (a) of the proviso are peremptory in that if they want to detain a person beyond three months they must obtain an order from the Advisory Board to that effect. Therefore, having regard to the administrative difficulties in this matter, the Drafting Committee felt that the exigencies of the situation would be met by putting a time limit of three months. There is no other intention on the part of the Drafting Committee in prescribing this particular time limit and I hope having regard to the facts to which I have referred the House will agree that this is as good and as reasonable a provision that could be made. Now, I come to the Advisory Board. Two points have been raised. One is what is the procedure of the Advisory Board. Sub-clause (a) does not make any specific reference to the procedure to be followed by the Advisory Board. Pointed questions have been asked whether under sub-

1024 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES clause (a) the executive would be required to place before the Advisory Board all the papers connected with the case which have led them to detain the man under preventive custody. The pointed question has been asked whether the accused person would be entitled to appear before the Board, cross-examine the witnesses, and make his own statement. It is quite true that this subclause (a) is silent as to the procedure to be followed in an enquiry which is to be conducted by the Advisory Board. Supposing this subclause (a) is not improved and remains as it is, what would be the consequences ? As I read it, the obtaining of the report in support of the order is an obligatory provision. It would be illegal on the part of the executive to detain a man beyond three months unless they have on the day on which the three months period expires in their possession a recommendation of the Advisory Board. Therefore, if the executive Government were not to place before the Advisory Board the papers on which they rely, they stand to lose considerably, that is to say, they will forfeit their authority to detain a man beyond three months. Therefore, in their own interest it would be desirable. I think necessary, for the executive Government to place before the Advisory Board the documents on which they rely. If they do not, they will be taking a very grave risk in the matter of administration of the preventive law. That in itself, in my judgement, is enough of a protection that the executive will place before it. If my friends are not satisfied with that, I have another proposal and that is that, without making any specific provisions with regard to procedure to be followed in sub-clause (a) itself, to add at the end of sub-clause (4) the following words :—“and Parliament may also prescribe the procedure to be followed by an Advisory Board in an enquiry under clause (a) of the proviso to clause (3) of this article,” I am prepared to give the power to Parliament to make provision with regard to the procedure that may be followed by the Advisory Board. I think that ought to meet the exigencies of the situation. Sir, these are all the amendments I am prepared to make in response to the criticisms that have been levelled against the different parts of the article 15A. I will now proceed to discuss some miscellaneous suggestions. Shri Jaspat Roy Kapoor : In that case, probably sub-section (b) of the proviso to clause (2) will go ? The Honourable Dr. B. R. Ambedkar : Nothing will go.

1025DRAFT CONSTITUTION Dr. Bakhshi Tek Chand (East Punjab : General) : You have agreed that the grounds of the detention will be communicated to the person affected and his explanation taken. The Honourable Dr. B. R. Ambedkar : And he will also be given an opportunity to put in a written statement. Dr. Bakhshi Tek Chand : Will you agree also to the other point to which I drew attention, namely, that as in the Madras Act, the explanation will be placed before the Board ? The Honourable Dr. B. R. Ambedkar : All papers may be placed before him. That is what I say. Dr. Bakhshi Tek Chand : All papers may not be placed before him. I have some experience. They will say that this is a very small matter. If you give him an opportunity to submit an explanation within a specified time, why do you light shy of incorporating this provision ? In sub-clause (2) of sub-section (1) of section 3 of the Madras Act there is provision that the explanation will be placed before the Board. The Honourable Dr. B. R. Ambedkar : That, I consider, is implicit in what I said. Dr. Bakhshi Tek Chand : Why not make it clear ? It is not there in the Bombay Act or in the United Provinces Act. The Honourable Dr. B. R. Ambedkar : As I stated, in the requirement regarding the submission of papers to the Advisory Board under sub-clause (a) is implicit the submission of a statment by the accused. If that is not so, I am now making a further provision that Parliament may by law prescribe the procedure, in which case Parliament may categorically say that these papers shall be submitted to the Advisory Board. Now I am not prepared to make any further concession at all. Shri Mahavir Tyagi : Dr. Ambedkar will please give me one minute ? The Honourable Dr. B. R. Ambedkar : Not now. Shri Mahavir Tyagi : I want to know whether the detenus under clause (4), according to the law made by Parliament or by the provinces, will have the benefit of their case being reviewed by the tribunal ? Sir, I want to know whether the detenus who will be detained under the Act which Parliament will enact under clause (4) will have the privilege of their case being reviewed by the tribunal proposed ? The Honourable Dr. B. R. Ambedkar : My Friend Mr. Tyagi is acting as though he is overwhelmed by the fear that he himself is going to be a detenu. I do not see any prospect of that. Shri Mahavir Tyagi : I am trying to safeguard your position.

1026 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : I will now deal with certain miscellaneous suggestions made. Pandit Thakur Das Bhargava : What about the safeguards regarding cross-examination and defence ? The Honourable Dr. B. R. Ambedkar : The right of crossexamination is already there in the Criminal Procedure Code and in the Evidence Act. Unless a provincial Government goes absolutely stark mad and takes away these provisions it is unnecessary to make any provision of that sort. Defending includes cross-examination. Pandit Thakur Das Bhargava : They even try to usurp power to this extent. The Honourable Dr. B. R. Ambedkar : If you can give a single instance in India where the right of cross-examination has been taken away, I can understand it. I have not seen any such case. Sir, the question of the maximum sentence has been raised. Those who want that a maximum sentence may be fixed will please note the provisions of clause (4) where it has been definitely stated that in making such a law, Parliament will also fix the maximum period. Pandit Hirday Nath Kunzru : The word is ‘may’. The Honourable Dr. B. R. Ambedkar : ‘May’ is ‘shall’. Pandit Hirday Nath Kunzru : Parliament may or may not do that. The Honourable Dr. B. R. Ambedkar : That is true, but if it does, it will fix the maximum. Another question raised is as regards the maintenance of the detenus and their families. Shri Jaspat Roy Kapoor : What about periodical reviews ? The Honourable Dr. B. R. Ambedkar : I am coming to that. That is not a matter which we can introduce in the Constitution itself. For instance, it may be necessary in some cases and may not be necessary in other cases. Besides, clause (4) gives power to Parliament also to provide that maintenance shall be given. Personally, myself, I think the argument in favour of maintenance is very weak. If a man is really digging into the foundations of the State and if he is arrested for that, he may have the right to be fed when he is in prison; but he has very little right to ask for maintenance. However, ex-gratia Parliament and the Legislature may make provision. I think such a provision is possible under any Act that Parliament may make under clause (4).

1027DRAFT CONSTITUTION With regard to the review of the cases of detenus, there again, I do not see why it should not be possible for either the provincial Governments in their own law to make provision for periodical review or for Parliament in enacting a law under clause (4) to provide for periodical review. I think this is a purely administrative matter and can be regulated by law. My Friend Mr. Ananthasayanam Ayyangar, said that I really do not have much feeling for the detenus, because I was never in jail, but I can tell him that if anybody in the last Cabinet was responsible for the introduction of a rule regarding review, it was myself. A very large part of the Cabinet was opposed to it. I and one other European member of the Cabinet fought for it and got it. So, it is not necessary to go to jail to feel for freedom and liberty. Then there is another point which was raised by my Friend, Mr. Kamath. He asked me whether it was possible for the High Courts to issue writs for the benefit of the accused, in cases of preventive detention. Obviously the position is this. A writ of habeas corpus can be asked for and issued in any case, but the other writs depend upon the circumstances of each different man, because the object of the writ of habeas corpus is a very limited one. It is limited to finding out by the Court whether the man has been arrested under law, or whether he has been arrested merely by executive whim. Once the High Court is satisfied that the man is arrested under some law, habeas corpus must come to an end. If he has not been arrested, under any law, obviously the party affected may ask for any other writ which may be necessary and appropriate for redressing the wrong. That is my reply to Mr. Kamath. Sir, I hope that with the amendments I have suggested the House will be in a position to accept the article 15A. Mr. President : I will now put the amendments to the vote. The Honourable Dr. B. R. Ambedkar : They might all be withdrawn. Mr. Naziruddin Ahmad (West Bengal : Muslim) : New clauses have just been added. Will they be put to the vote now ? Mr. President : Yes, just now ? ***** *Mr. President : The question is : “That in amendment No. 1 above, in clause (1) of the proposed new article 15A, for the words ‘a legal practitioner of his choice’ the words ‘and he defended by a legal practitioner of his choice in all criminal proceedings and trials’ be substituted.” *CAD, Vol. IX, 16th September 1949, p. 1566.